By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On January 13 and 31, the ALA will host its annual Illinois Supreme Court 2016 Criminal Cases Year in Review, featuring a panel discussion about the most significant criminal cases decided by the Illinois Supreme Court this past year.

There will be two events, one in Wheaton, co-sponsored by the DuPage County Bar Association (January 13) and one in Chicago, co-sponsored by the Cook County Bar Association (January 31). Both events will be moderated by ALA Treasurer Gretchen Harris Sperry and will feature Illinois Appellate Court Justice Joseph Birkett (Second District), Leah Bendik, Illinois Assistant Attorney General, Criminal Appeals Division and James Chadd, Deputy State Appellate Defender, Office of the State Appellate Defender. The Chicago event will also feature retired Illinois Appellate Court Justice James Epstein. The Wheaton event will also feature retired Illinois Appellate Court Justice Stuart Palmer.

The Wheaton event will be held on Friday, January 13, from noon to 1:30 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

The Chicago event will be held on Tuesday, January 31, from noon to 1:45 p.m., at Hinshaw & Culbertson LLP, 222 North LaSalle St., Suite 300.

Attendees at both events should bring their own lunches and will receive 1.5 hours of MCLE credit.

Additionally, on Thursday, January 26, from 5 to 7 p.m., the ALA will host a reception honoring the justices of the Illinois Appellate Court’s First District. This year’s special honorees will be Justice Margaret Stanton McBride and the late Justice Laura Liu. The event will be held at the Hotel Allegro, 171 West Randolph Street in Chicago.

For more information about any of the events and to register, please click here.

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s January Term, which begins Monday, January 10, 2017, with oral arguments scheduled for January 10, 11, 12 and 18, 2017. A total of 9 cases will be heard – 5 civil and 4 criminal. The following civil cases are scheduled for argument this Term:

In re Marriage of Heroy—No. 120205—January 11

The City of Chicago v. Alexander—No. 120350—January 11

The Carle Foundation v. Cunningham Township—Nos. 120427, 120433 cons.—January 12

Chultem v. Ticor Title Insurance Co.—No. 120448—January 12

Barr v. Cunningham—No. 120751—January 18

Below is a summary for one of these civil cases, In re Marriage of Heroy. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

In re Marriage of Heroy

The issue in this case involves what factors are to be considered in determining whether to award attorney’s fees to a party in a divorce proceeding and whether a party must show her inability to pay her own fees in order to receive them from the other party.

In 2006, and as part of the parties’ divorce, the trial court awarded Donna $35,000 per month in permanent maintenance, plus $4,500 per month in retroactive temporary maintenance in addition to the $6,000 per month she had been receiving prior to the entry of judgment. On appeal, the appellate court affirmed the trial court’s award of $35,000 per month in permanent maintenance. In 2009, David filed a petition requesting the termination or modification of Donna’s permanent maintenance award due to a decrease in his income, a decrease in his net worth, and Donna’s failure to make any reasonable efforts to become self-supporting since the dissolution judgment. After an extensive hearing, the trial court found that David had met his burden of establishing a substantial change in circumstances as required by Section 510 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510), entitling him to modification of the permanent maintenance payments to Donna, but rejected David’s request to terminate the payments. The court lowered Donna’s permanent maintenance payments to $27,500 per month. The court also ordered David to contribute $125,000 toward Donna’s attorney’s fees incurred during the maintenance modification proceedings. After David filed a notice of appeal, Donna sought an order requiring David to make a contribution to her prospective attorney’s fees related to the appeal. The trial court granted Donna’s motion and ordered David to pay $35,000 toward her prospective attorney’s fees.

The Illinois Appellate Court first rejected David’s argument that the trial court should have placed more emphasis on Donna’s failure to make reasonable efforts to become financially self-supporting, finding that, since the trial court in its 2006 order addressed Donna’s self-sufficiency and her ability to support herself in the lifestyle she enjoyed during her marriage in awarding permanent maintenance, those issues were res judicata. The court then reviewed the record and determined that the trial court made a calculation error and had intended to make Donna’s permanent maintenance award to be 25% of David’s cash flow, which would be $25,745 in monthly maintenance to Donna, and not $27,500. The appellate court vacated the trial court’s award of modified permanent maintenance and remanded the case to the trial court with directions to enter a modified permanent maintenance award of 25% of David’s cash flow. The court also reversed the order requiring David to pay some of Donna’s attorney’s fees, citing In re Marriage of Schneider, 214 Ill. 2d 152 (2005), and reasoning that the question was not whether David had more financial resources than Donna, but whether Donna had the ability to pay her own fees without depleting her assets to such an extent as to undermine her financial stability. As the record was devoid of any evidence that payment of her attorney’s fees would undermine Donna’s financial stability, the court held that the record did not support the award of attorney’s fees to Donna.

By Stephen Soltanzadeh
Associate, Ancel Glink

The First District of the Illinois Appellate Court recently held that it lacked jurisdiction over an appeal from a circuit court’s “supplemental opinion,” entered nearly a year after its initial decision, where the appellant did not timely file a notice of appeal from the initial order. The appellate court held that because the circuit court’s initial decision disposed of all claims between the parties, that decision was a final order; therefore, the circuit court lacked jurisdiction to enter a supplemental decision more than 30 days after the final order and, in turn, the appellate court lacked jurisdiction to review the supplemental opinion.

CitiBank N.A. v. The Illinois Department of Revenue, 2016 IL App (1st) 133650, involved a consolidated appeal concerning Department of Revenue denials of requests by plaintiffs CitiBank N.A. and Chrysler Financial Services America (Chrysler) for refunds of Retailers’ Occupation Tax Act (ROTA) taxes. Chrysler sought administrative review of the Department’s decision and, on March 14, 2014, the circuit court affirmed. Over eight months later, in November 2014, Chrysler filed a section 2-1401 petition (735 ILCS 5/2-1401) stating that it had not learned of the circuit court’s decision until October 2014 and arguing that the circuit court had overlooked a factual stipulation.

In December 2014, the circuit court granted Chrysler’s section 2-1401 petition, and in March 2015, it issued a supplemental opinion, which again affirmed the Department’s decision. The March 2015 supplemental opinion was identical to the March 2014 decision, except that it contained an additional discussion of Chrysler’s argument regarding the stipulation and included a statement that Chrysler’s time for filing a notice of appeal would begin to run upon entry of the supplemental opinion. Chrysler filed a notice of appeal within 30 days of the March 2015 supplemental opinion.

The appellate court held that it lacked jurisdiction over the appeal because Chrysler failed to timely file a notice of appeal after the circuit court’s March 2014 order. The court explained that, because the March 2014 order disposed of all of Chrysler’s claims, it was final and left Chrysler with four choices: (1) file a posttrial motion within 30 days; (2) file a notice of appeal within 30 days; (3) accept the decision; or (4) file a section 2-1401 petition. Because Chrysler failed to timely file a notice of appeal from either the March 2014 final order or the December 2015 order granting the 2-1401 petition, it lost its opportunity to appeal.

The court further rejected Chrysler’s argument that it was appealing only the court’s March 2015 modified opinion, not the March 2014 or December 2015 decisions. The court held that the circuit court lacked jurisdiction to modify its decision after 30 days of its entry, and that the appellate court lacked jurisdiction to review an order that the circuit court did not have jurisdiction to enter. The court also determined that the circuit court’s statement that Chrysler’s time to appeal would begin to run from entry of the March 2015 order had no effect because the circuit court may not extend the time for filing a notice of appeal. Finally, the court observed that all of the claims raised by Chrysler on appeal related to issues decided in the circuit court’s March 2014 order, which Chrysler could appeal only by timely filing a timely notice of appeal within 30 days of entry of the order. Accordingly, the court dismissed Chrysler’s appeal for lack of jurisdiction.

By Paul Berks
Massey & Gail LLP

In United States v. Worthen, No. 15-3521, the Seventh Circuit dismissed an appeal of a criminal conviction on the grounds that the defendant waived his right to appeal as a condition of entering a plea agreement.

A grand jury indicted defendant Worthen on four counts, including “causing death while using or carrying a firearm during a crime of violence,” under 18 U.S.C. § 924(j), which carried a potential sentence of death or life in prison. Worthen pled guilty to the section 924(j) charge, as well as a robbery charge, and agreed to waive his appeal rights. In exchange, the government dismissed the other counts and promised not to seek the death penalty.

The district court subsequently sentenced Worthen to 60 years in prison – 10 years for robbery and 50 years for the section 924(j) charge. Worthen appealed, arguing that robbery was not a “crime of violence” within the meaning of the statute, and therefore was not a predicate offense necessary to support his conviction. Absent a conviction on a valid predicate offense, Worthen argued his section 924(j) conviction was invalid.

The government moved to dismiss the appeal because Worthen had waived his right to appeal as part of his plea deal. The Seventh Circuit noted that it had long enforced the general rule that “appeal waivers are enforceable and preclude appellate review.” The court also recognized that it had previously carved out a “narrow exception[ ] to this rule” when “a sentence *** exceeds the statutory maximum for the crime committed.” Worthen argued he fell within this exception because, if his conviction under section 924(j) was invalid, the maximum sentence on the remaining robbery charge was 20 years, and his 60-year sentence would therefore exceed the statutory maximum for the crime for which he was convicted.

The Seventh Circuit rejected this reasoning as “entirely circular” because it would require the court to determine the merits of his appeal in order to assess the validity of his appellate waiver. The court explained that, under Worthen’s approach, “the rule would be that an appeal wavier is enforceable unless the appellant would succeed on the merits of his appeal.” It explained that this approach would effectively “eviscerate the right to waive an appeal” by merging the merits of the appeal with the validity of the waiver.

The court further recognized that the effective reversal of its “longstanding precedent that appeal waivers are generally enforceable” would reduce the willingness of the government to offer appeal waivers as part of plea deals. This, in turn, would lead the government to offer less generous plea bargain terms, harming defendants, like Worthen, who secured a promise from the government not to seek the death penalty, in part, in exchange for his waiver of the right to appeal. Accordingly, the court dismissed Worthen’s appeal without considering its merits.

By Karen Kies DeGrand
Partner, Donohue Brown Mathewson & Smyth LLC

On November 29, 2016, the ALA convened for lunch at the Union League Club in Chicago, and ALA members and guests were treated to a lively presentation concerning ethical problems facing appellate lawyers. The discussion also encompassed the broader topic of trends in legal ethics.

These two distinguished attorneys stand at the forefront of legal ethics in Illinois. Ms. Foster teaches several legal ethics courses at Northwestern University Pritzker School of Law, where she covers not only the general topic but also lectures on legal ethics for the business lawyer, legal ethics for the global lawyer and legal ethics for the public interest/government lawyer. Drawing on her many years of experience as a Senior Trial Lawyer for the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (“ARDC”) and as counsel for the ARDC Review Board, Ms. Foster has taught numerous legal ethics courses and programs for other law schools and continuing legal education providers. Mr. Grogan, Deputy Administrator and the Chief Counsel of the ARDC, has served the state for more than 36 years investigating and prosecuting charges of lawyer misconduct and has argued dozens of disciplinary cases in the Supreme Court of Illinois. An adjunct professor at the Loyola University School of Law, Mr. Grogan has taught legal ethics and lectured on various professional responsibility topics in a variety of settings.

Acknowledging that appellate lawyers generally are not prone to ARDC-prosecuted violations, the speakers identified the most common areas of disciplinary concern. Most frequently, neglect or incompetence, either as a pattern in in conjunction with other misconduct, will draw the ARDC’s attention to the appellate practitioner. Ms. Foster described an extreme situation that arose in the context of a Seventh Circuit appeal, where an attorney’s lies about illness to avoid oral argument plus other misconduct resulted in a 60-day suspension and restitution of a fee. The speakers also discussed Illinois rule changes, which include requiring additional disclosure by Illinois lawyers with no malpractice insurance and inquiry into attorneys’ succession plans for their practices.

The speakers also addressed nationwide trends. One new rule under discussion is ABA Model Rule 8.4(g), adopted in August, 2016, which categorizes conduct that constitutes harassment or discrimination as professional misconduct. Also drawing widespread disciplinary attention is lawyer misuse of social medical, including Facebook misconduct, and unprofessional behavior in the employment arena.

The ALA extends sincere thanks to Jim Grogan and Mary Foster for their humorous and informative presentation.

By Andrew Kwalwaser 
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In Kenosha Unified School District No. 1 Board ofEducation, et al. v. Whitaker, No. 16-8019, the Seventh Circuit Court of Appeals determined that it lost jurisdiction over an interlocutory appeal when the District Court of the Eastern District of Wisconsin revoked its certification of the appeal.

The plaintiff, a transgender boy, sued his school district for sex discrimination after his high school prohibited him from using the boys' bathroom. The defendants filed a motion to dismiss, which the district court denied. Following a hearing on the plaintiff's motion for a preliminary injunction, the defendants submitted a proposed order certifying for appeal the order that denied their motion to dismiss under 28 U.S.C. § 1292(b). The district court entered the proposed order, and the defendants filed the instant petition for interlocutory appeal. Additionally, the defendants filed a separate appeal from the district court's order partially granting the preliminary injunction.

While the instant appeal was pending, the plaintiff moved the district court to reconsider certification pursuant to Federal Rule of Civil Procedure 60(b). The district court granted the plaintiff's motion and revoked certification, finding that the defendants "had not made a legal or factual argument in support of certification" and that the district court had erred by not soliciting argument on the issue. The district court also stated that it erred by omitting "interlocutory certification language" from the certification order.

The district court observed that 28 U.S.C. § 1292(b) sets forth several factors to be considered in certifying an interlocutory appeal, including whether the underlying order involves a "controlling question of law," "whether an immediate appeal would materially advance the ultimate termination of the litigation," and "whether there is a substantial ground for difference of opinion on the question of law." Although determination of whether sex "encompasses gender identity" for purposes of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, would control one of the plaintiff's claims, the district court found that it would not advance the litigation because the plaintiff had pleaded facts sufficient to survive the motion to dismiss on other grounds.

The Seventh Circuit asked the parties to file statements of position regarding the district court's revocation of certification. Both parties agreed, as did the Seventh Circuit, that its jurisdiction to hear an interlocutory appeal under U.S.C. § 1292(b) "derives from a district court's certification of an order." As the Seventh Circuit had not entered an order granting the petition at the time the district court withdrew certification, the Seventh Circuit lost jurisdiction to consider the instant appeal.

The defendants argued that the Seventh Circuit could exercise pendent appellate jurisdiction in connection to the separate appeal from the preliminary injunction order. The Seventh Circuit observed that the doctrine of pendent appellate jurisdiction allows a reviewing court to consider a non-final order that is "inextricably intertwined" with an appealable order. As the instant appeal was not properly taken from an appealable order, pendent appellate jurisdiction did not exist. Instead, the Seventh Circuit noted that "[t]he appropriate place for the defendants to request pendent appellate jurisdiction is in the appeal from the preliminary injunction order." Consequently, the Seventh Circuit denied the defendants' petition for interlocutory appeal.

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s November Term, which began Monday, November 14, 2016, with oral arguments scheduled for November 15, 2016. A total of 4 cases were heard – 1 civil and 3 criminal. Here is the civil case with the date of oral argument:

Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois—No. 120343—November 15

Below is an abbreviated summary for the case. Summaries for this case and others pending with the Supreme Court can be found in our Cases Pending publication, accessible to ALA members on our website.

No. 120343
Board of Educ. of Springfield School Dist. No. 186 v. Attorney General of Illinois

The following two issues are presented in this appeal: (1) whether the signing of an agreement during a closed session meeting constitutes a final action in violation of section 2(e) of the Open Meetings Act (“Act”) where the agreement was later approved by vote at a subsequent public meeting; and (2) whether the public was adequately informed of the nature of the public action to be taken at the subsequent meeting.

Plaintiff, the Board of Education of Springfield School District No. 186 (“Board”), terminated its superintendent’s employment contract upon mutual agreement. The superintendent signed the agreement on January 31, 2013, and at a closed session meeting on February 4, 2013, a majority of the Board signed, but did not date, the agreement. The agenda for the March 5, 2013 Board meeting included an action item to approve a resolution related to the agreement and included a copy of the agreement itself. At the next Board meeting, the Board approved the agreement in open session and added the March 5, 2013 date to the Board members’ signatures on the agreement.

The Illinois Attorney General (“AG”) issued a binding opinion concluding that the signing of the agreement during the February 4, 2013, closed session meeting constituted a “final action” in violation of section 2(e) of the Act (5 ILCS 120/2(e)). On the Board’s complaint for administrative review, the circuit court found that the “final action” occurred on March 5, 2013, when the Board members voted to approve the agreement during the public meeting.

The AG then issued a second binding opinion, concluding that the Board violated the Act by failing to adequately inform the public of the nature of the public business being conducted at the March 5, 2013, meeting. The circuit court again reversed, finding that the AG expanded the requirements of the Act to require that a public body explain the significance of the final action to be taken, rather than merely advise the public of the nature of the final action to be taken.

The Illinois Appellate Court, Fourth District affirmed both circuit court orders. Relying on Grissom v. Board of Education, 75 Ill. 2d 314 (1979), it held that a Board can discuss and vote on an employment decision in closed session and hold a final roll call vote on that decision in open session without violating the Act. The appellate court also concluded that the Act only requires that the public agency advise the public about the general nature of the final action to be taken, but it is not required to provide a detailed explanation as to the significance or impact of the final action.

In her petition for leave to appeal, the AG argues that the appellate court’s decision allows public bodies to take final action during open meetings without making a public recital at the meeting to inform the public about the business being transacted, in violation of section 2(e) of the Act. The AG also argues that the appellate court erred in holding that the Board validly approved the separation agreement at the March 5, 2013, meeting because the public was not adequately informed about the general subject matter of the agreement, which is inconsistent with the language of section 2(e) of the Act and with the Act's purpose of keeping the public “informed as to the conduct of their business.” 5 ILCS 120/1.

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

In McDonald v. Adamson, No, 15-1305, the Seventh Circuit Court of Appeals recently reversed a ruling from the District Court for the Northern District of Illinois that an inmate’s claims were barred by res judicata.
 
In 2010, Illinois state prison inmate Donald McDonald filed a complaint in the Illinois Court of Claims against the Illinois Department of Corrections. McDonald claimed that he had been denied his First Amendment free exercise rights as a practicing Muslim. He alleged that he was not permitted to attend Friday prayer services, that prison officials regularly stole prayer cassette tapes and prayer rugs, and that Christians were allowed to have more volunteers enter the prison than were Muslims. McDonald sought, among other things, a damages award of $5,000.
 
The Illinois Court of Claims conducted a hearing on McDonald’s complaint but failed to issue a decision for more than two years. In the interim, McDonald filed a similar complaint in the federal district court seeking injunctive relief under 42 U.S.C. § 1983. In 2013, the Illinois Court of Claims issued an order rejecting the allegations in McDonald’s original complaint. The district court subsequently dismissed McDonald’s federal complaint, finding that the order from the Illinois Court of Claims rendered the federal complaint barred by res judicata.

On appeal, the Seventh Circuit agreed with the defendants’ concession that McDonald’s federal claim was not barred by res judicata. The court explained that Illinois law affords preclusive effect only to a final judgment rendered by a “court of competent jurisdiction.” Because the Illinois Court of Claims lacks jurisdiction to consider claims based upon a federal statute or the federal or state constitutions, it is not a “court of competent jurisdiction” under Illinois preclusion law. Thus, the adverse judgment in the Illinois Court of Claims did not bar McDonald’s federal complaint based upon the same facts.

The Seventh Circuit also declined to address the defendants’ collateral estoppel argument. The court acknowledged that res judicata and collateral estoppel are separate legal doctrines, but noted that the defendants bore the burden to raise collateral estoppel as an affirmative defense in the district court. Hence, the Seventh Circuit would not affirm a judgment based on an affirmative defense raised for the first time on appeal.

The Seventh Circuit noted in closing that, on remand, the district court would be free to grant McDonald leave to amend his complaint. The defendants would also have an opportunity to renew their motion to dismiss. 

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On November 29, 2016, the ALA will host a luncheon focusing on ethics for appellate practitioners featuring Jim Grogan, Deputy Administrator and Chief Counsel of the Illinois Attorney Registration & Disciplinary Commission and Mary Foster, former Review Board counsel at the ARDC and current senior lecturer at the Northwestern Pritzker School of Law.

At the luncheon, Grogan and Foster will discuss ethical issues that uniquely affect appellate attorneys. The program will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE ethics credit.

For more information and to register for either event, please click here.

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal discussing how the United State’s Supreme Court’s lack of a ninth justice has affected its docket.

 

Chemerinsky observed that, at the end of the Court’s first month, its docket only had 39 cases, which was “significantly fewer than usual for this point of the term.” In addition to the smaller docket, Chemerinsky noted that the effect of only eight justices could be seen by looking at the Court’s December schedule for oral argument. “Four of the six days that the court is hearing arguments, the justices will hear only one case, rather than the two, or occasionally three, cases usually heard per day.”

 

Chemerinsky also believed that the Court is waiting for the appointment of a ninth justice for some cases that were granted review last January and have already been fully briefed, but remain without a date for oral argument. Those cases include: Trinity Lutheran Church of Columbia,Missouri v. Pauley, which “concerns whether it violates free exercise of religion or denies equal protection for a state to give aid (the material for the bottom of playgrounds) to public and secular private schools, but not to religious schools”; Wisconsin v. Murr, which concerns “the takings clause and how it is determined whether adjacent pieces of property should be deemed to be one or two pieces of property”; and Microsoft v. Baker, which concerns “whether plaintiffs can appeal the denial of class certification by dismissing their suit.”

 

The full article can be accessed here.